Democrats on Senate Panel Pummel Judicial Nominee

By NEIL A. LEWIS

Published: March 2, 2005

Correction Appended

The Senate moved closer to a major partisan breakdown over judicial appointments on Tuesday as Democrats on the Judiciary Committee assailed one of President Bush's nominees and asserted he would not be confirmed to the bench.

Republicans had hoped that the nominee, William G. Myers III, who had been nominated to a seat on the United States Court of Appeals for the Ninth Circuit, might get enough Democratic support to win confirmation and break a long-term logjam over judicial posts.

But minutes into a two-hour hearing, Democrats on the committee began pummeling Mr. Myers, a longtime lobbyist for the mining and ranching industries, as unfit for the federal bench.

''The most anti-environmental candidate for the bench I have seen in 37 years in the Senate,'' Senator Patrick J. Leahy of Vermont, the committee's ranking Democrat, said. Senator Charles E. Schumer, Democrat of New York, said, ''Your record screams 'passionate advocate' and it doesn't even whisper 'impartial judge.'''

Senator Arlen Specter, the Pennsylvania Republican who heads the committee, encouraged Mr. Myers to rebut his critics, inviting him to declare that his views as a lobbyist were irrelevant to how he would behave as a judge. ''What assurances can you give to your critics and to the public at large that as a judge you would dispassionately review the law?'' Mr. Specter asked.

Mr. Myers said that remarks he had made in the past disparaging environmental groups showed that he had been ''a forceful advocate for my clients and, if confirmed, I would be a forceful advocate for the law.''

Before Tuesday, Mr. Specter had expressed the hope that confirming Mr. Myers would herald a compromise to end a three-year battle between the White House and Senate Democrats over judicial nominations.

During Mr. Bush's last term, Democrats blocked 10 of his appeals court nominees with filibusters, the threat of extended debate, saying they were conservative extremists.

Mr. Myers was one of seven of those filibustered who was renominated by Mr. Bush.

At the hearing on Tuesday, Senator Russell D. Feingold, Democrat of Wisconsin, criticized Mr. Myers for his actions as the senior lawyer at the Interior Department, where he drafted a ruling that upheld a regulatory change allowing a foreign-owned gold mine to be established on Indian land in California. A federal judge later ruled that Mr. Myers's opinion misconstrued the ''clear mandate'' of a federal law that, the judge said, was intended to prevent degradation of land.

Mr. Feingold said that Mr. Myers met with the mine owners 127 times while refusing to meet with the Indian tribe.

While there seemed to be no flexibility among Democrats on the committee on Tuesday, the real test will come when the nomination moves to the Senate floor.

Mr. Specter said at the hearing that he had counted 58 votes in the Senate supporting Mr. Myers's confirmation ''and that's within shouting distance'' of the 60 votes needed to break any Democratic filibuster.

But Mr. Specter's tally appeared to include Ken Salazar, the new Democratic senator from Colorado, who as the state's attorney general signed a letter supporting Mr. Myers's confirmation. Mr. Salazar has since said that he had not made up his mind. On Thursday, he released a letter to the White House calling on Mr. Bush to withdraw Mr. Myers's name, along with the six others who have been renominated, as a gesture to find grounds for compromise.

All of this means that the Senate may be moving closer to a situation in which frustrated Republicans declare filibusters inapplicable to judicial nominees. Senator Bill Frist of Tennessee, the Republican leader, has threatened to do just that if the Democrats continue their filibusters. The Democrats have said that if Dr. Frist were to make such a change in the rules, they will block all activity, shutting down the Senate.

After the hearing, Mr. Specter said he thought that Mr. Myers had improved his chances. But that judgment seemed optimistic when measured against the comments of the Democratic leader, Senator Harry Reid of Nevada, who told reporters, ''I think that he's worse off than he was before.'' Mr. Reid also expressed confidence that the Democrats would continue to maintain their filibusters on the candidates they had previously blocked.

Correction: March 10, 2005, Thursday
An article on March 2 about opposition by Senate Democrats to the nomination of William G. Myers III for a seat on a federal appeals court misstated the number of times he met with representatives of the mining industry in a dispute with an Indian tribe while he was the senior lawyer at the Interior Department. It was 27, not 127. (He held no meetings with the tribe.)